Employers' liability: What is their fault?

The recent Court of Appeal decision in Graham v Commercial Bodyworks Ltd [2015] has clarified when an employer is and is not liable for the actions of its employees. Bedford solicitor Hannah Young provides an update on an employers' liability case that involved serious injury to an employee. 

In this case, Graham was the victim of the extremely reckless ‘prank’ of a colleague at the bodywork repair shop where they both worked. Their jobs included the use of inflammable thinning agents. The colleague, who disappeared without a trace following the incident, sprayed thinning agent onto Graham’s overalls and then sparked his lighter. Graham suffered severe injury. Graham sued his employer, submitting, that, as the reckless colleague’s actions were so closely connected with the work they were both employed to do, his employer should be liable for his injury. 

The Court of Appeal disagreed and, clarifying previous case law, held that the following five factors were relevant in deciding whether there was a significant link between the creation of a risk in the workplace and injury caused by the act of an employee: 

1) The opportunity for the employee to abuse his power
2) The extent the wrongful act furthered the employer’s aims
3) The extent to which the wrongful act related to friction, confrontation or intimacy inherent in the employer’s enterprise
4) The extent of the power given to the wrongful employee over the victim
5) The vulnerability of potential victims to wrongful exercise of power.

It was considered that only 1) applied to the reckless employee’s actions in the case of Graham and therefore he had no case against his employer.

The case provided a checklist for lawyers dealing with situations where the employer’s ‘fault’ for an employee’s action is in doubt. However we can undoubtedly expect varying judicial interpretation of these factors over time. It is clear that some factors were included with specific scenarios in mind, e.g. factor 3 relating to employees in confrontational positions such as doormen where acts of aggression are more closely related to the job role, and factors 4 and 5 relating to abuse cases.

In Graham’s case, he would unlikely have been left entirely without redress, provided that his lawyers advised him to make a claim to the Criminal Injuries Compensation Authority on the basis that he suffered the injury as a result of a serious assault on his person.